Citation Nr: 1041088
Decision Date: 11/02/10 Archive Date: 11/12/10
DOCKET NO. 07-07 930 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for a chronic stomach or
intestinal disorder.
2. Entitlement to service connection for gastroesophageal reflux
disease (GERD).
3. Entitlement to service connection for chronic sinusitis.
4. Entitlement to service connection for migraine headaches.
5. Entitlement to service connection for pseudofolliculitis.
6. Entitlement to service connection for tinnitus.
7. Entitlement to service connection for bilateral hearing loss.
8. Entitlement to service connection for residuals of a cold
injury, bilateral feet.
9. Entitlement to service connection for hemorrhoids.
10. Entitlement to service connection for degenerative joint
disease of the hips, bilaterally.
11. Entitlement to service connection for leukopenia.
12. Entitlement to service connection for hyperlipidemia.
13. Entitlement to service connection for a back disability.
14. Entitlement to service connection for a bilateral knee
condition.
15. Entitlement to service connection for a sleep disorder with
insomnia.
16. Entitlement to service connection for hypertension.
17. Entitlement to service connection for major depressive
disorder secondary to service connected hepatitis.
18. Entitlement to an initial compensable rating for service
connected hepatitis B.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESSES AT HEARING ON APPEAL
Appellant
Appellant's Spouse
ATTORNEY FOR THE BOARD
A. G. Alderman, Associate Counsel
INTRODUCTION
The Veteran had active service from August 1974 to May 1983.
This case comes before the Board of Veterans' Appeals (Board) on
appeal from rating decisions of the Department of Veterans
Affairs (VA) Regional Office (RO) in Waco, Texas.
The Veteran appeared and provided testimony before the
undersigned Veterans Law Judge (VLJ) in March 2010. A transcript
of the hearing has been associated with the claims file.
The issue of service connection for a cervical spine
disability has been raised by the record, but has not been
adjudicated by the Agency of Original Jurisdiction (AOJ).
Therefore, the Board does not have jurisdiction over it,
and it is referred to the AOJ for appropriate action.
The issues of service connection for hypertension, a sleep
disorder with insomnia, a low back disability, a bilateral knee
disability, and major depressive disorder including as secondary
to service connected hepatitis, are addressed in the REMAND
portion of the decision below and are REMANDED to the RO via the
Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. The Veteran's chronic stomach or intestinal disorder, GERD,
chronic sinusitis, migraine headaches, tinnitus, left ear hearing
loss, and bilateral hip disability did not have onset during and
are not related to service.
2. The Veteran does not currently have cold injuries to the
feet, or leukopenia.
3. The Veteran's pseudofolliculitis, while currently inactive,
had onset during active service.
4. The Veteran does not have a right ear hearing loss disability
for VA compensation purposes.
5. Hemorrhoids and residuals had onset during active service.
6. The Veteran's current elevated cholesterol/lipid level, or
hyperlipidemia, does not constitute a disease or disability for
VA compensation purposes.
7. The records show no indication of chronic or recurrent
hepatitis and an antibody test indicates a successful recovery.
CONCLUSIONS OF LAW
1. The criteria for service connection for chronic stomach or
intestinal disorder, GERD, chronic sinusitis, migraine headaches,
tinnitus, and a bilateral hip disability have not been met. 38
U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002 & Supp.
2009); 38 C.F.R. §§3.102, 3.159, 3.303 (2010).
2. The criteria for service connection for bilateral hearing
loss have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002),
5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2010).
3. The criteria for service connection for pseudofolliculitis
and hemorrhoids have been met. 38 U.S.C.A. §§ 1110, 1131 (West
2002), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2010).
4. Service connection for cold injuries to the feet, leukopenia
hyperlipidemia is not warranted. 38 U.S.C.A. §§ 1110, 1154,
5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§3.102,
3.159, 3.303 (2010).
5. The criteria for an initial compensable rating for hepatitis
B have not been met. 38 U.S.C.A. §§ 1155, 5107(b), (West 2002);
38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7345 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Service connection may be granted for a disability resulting from
a disease or injury incurred in or aggravated by service. See 38
U.S.C.A. §§ 1110, 113; 38 C.F.R. § 3.303(a). In general,
service connection requires (1) the existence of a present
disability; (2) in-service incurrence or aggravation of a disease
or injury; and (3) a causal relationship between the present
disability and the disease or injury incurred or aggravated
during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.
Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111
(2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995).
Service connection may also be granted for certain chronic
diseases such as hypertension when the disease is manifested to a
compensable degree within one year of separation from service. 38
U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
A disorder may also be service connected if the evidence of
record reveals that the Veteran currently has a disorder that was
chronic in service or, if not chronic, that was seen in service
with continuity of symptomatology demonstrated thereafter. 38
C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97
(1997). A demonstration of continuity of symptomatology is an
alternative method of demonstrating the second and/or third
Caluza elements discussed above. Savage, 10 Vet. App. at 495-
496. Disorders diagnosed after discharge may still be service
connected if all the evidence, including pertinent service
records, establishes that the disorder was incurred in service.
38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed.
Cir. 1994).
In rendering a decision on appeal, the Board must analyze the
credibility and probative value of the evidence, account for the
evidence which it finds to be persuasive or unpersuasive, and
provide the reasons for its rejection of any material evidence
favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App.
36, 39-40 (1994); Gilbert, 1 Vet. App. at 57.
Competency of evidence differs from weight and credibility.
Competency is a legal concept determining whether testimony may
be heard and considered by the trier of fact, while credibility
is a factual determination going to the probative value of the
evidence to be made after the evidence has been admitted. Rucker
v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App.
465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24,
25 (1991) ("although interest may affect the credibility of
testimony, it does not affect competency to testify").
A veteran is competent to report symptoms that he experiences at
any time because this requires only personal knowledge as it
comes to him through his senses. Layno, 6 Vet. App. at 470; Barr
v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may
be diagnosed by its unique and readily identifiable features, the
presence of the disorder is not a determination "medical in
nature" and is capable of lay observation).
The absence of contemporaneous medical evidence is a factor in
determining credibility of lay evidence, but lay evidence does
not lack credibility merely because it is unaccompanied by
contemporaneous medical evidence. See Buchanan v. Nicholson, 451
F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical
records does not serve as an "absolute bar" to the service
connection claim); Barr, 21 Vet. App. 303 ("Board may not reject
as not credible any uncorroborated statements merely because the
contemporaneous medical evidence is silent as to complaints or
treatment for the relevant condition or symptoms").
In determining whether statements submitted by a veteran are
credible, the Board may consider internal consistency, facial
plausibility, consistency with other evidence, and statements
made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995).
In determining whether service connection is warranted for a
disability, VA is responsible for determining whether the
evidence supports the claim or is in relative equipoise, with the
Veteran prevailing in either event, or whether a preponderance of
the evidence is against the claim, in which case the claim is
denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49
(1990). When there is an approximate balance of positive and
negative evidence regarding any issue material to the
determination, the benefit of the doubt is afforded the claimant.
Gastrointestinal Disorders
The Veteran seeks service connection for a chronic stomach or
intestinal disorder as well as GERD. STRs do not show a
diagnosis or treatment of GERD during service, however, the
Veteran was treated on several occasions for stomach upset,
diarrhea, abdominal cramps, nausea, and vomiting. In December
1977, the symptoms were classified as viral. In January 1978,
the diagnosis was recurrence of hepatitis versus the flu. A
definitive diagnosis was not provided. A March 1978 STR
diagnosed the Veteran with gastroenteritis. A June 13, 1978
record showed that the Veteran complained of nausea, loss of
appetite, diarrhea lasting one week and reported pains like heart
burn. The treating physician noted the long history of stomach
disorders; however, a diagnosis was not rendered. A GI study
performed two days later showed normal esophagus, stomach,
duodenal cap, loop and proximal small bowel. The gallbladder was
also within normal limits. The assessment was to rule out
subacute pancreatitis and parasites. A December 1978 record
stated that gastritis needed to be ruled out. The Veteran
continued to be treated for diarrhea and stomach symptoms until
June 1979, when he was diagnosed with gastritis. He was
diagnosed with gastroenteritis in April 1980. The separation
examination showed no abnormalities; however, in the report of
medical history (RMH) the Veteran noted his stomach problems.
Subsequent to service, treatment records show that the Veteran
was treated in January 1992 for diarrhea and nausea and from
August 2001 for GERD, with GERD occasionally resolving. He was
diagnosed in February 2006 with gastroenteritis. In June 2006
the Veteran had a CT scan which revealed several small sigmoid
diverticula; however, there was no radiographic evidence of
diverticulitis, but an inflamed diverticulum could not be
completely excluded. In March 2008, he again complained of
diarrhea and in May 2008, he complained of gastritis, diarrhea,
constipation, nausea, vomiting, and blood in his stool. No
diagnosis was rendered. In June 2008, he sought treatment for
persistent abdominal pain. The diagnosis was persistent
abdominal pain and intermittent diarrhea. In July 2008, an EGD
revealed gastritis.
A VA examination was conducted in December 2008. The examiner
reviewed the claims file. The Veteran reported semiweekly
episodes of post-prandial nausea with regurgitation as well as
throbbing left abdominal pain. He denied heartburn, dysphagia,
nausea, vomiting, fever, jaundice, or diarrhea and melena. Also
noted were prior negative GI studies. The examiner noted that
the Veteran was treated during service for diarrhea with
abdominal pain on more than one occasion and once for gastritis.
He noted that there was no recurrent diagnosis of GERD-like
symptoms or of gastritis. The diagnosis was dyspepsia. The
examiner said that the Veteran has post-prandial symptoms with
slight regurgitation, nausea, and left abdominal pain. He opined
that it is unlikely that this condition was present in the
military as there is no indication in the record of the same
condition.
A VA outpatient treatment record dated February 2010 shows
complaints of stomach pains. The diagnosis was dyspepsia with
questionable lactose intolerance.
The Veteran testified that he is on a diet for his stomach
condition. He has been advised to stay away from dairy products.
He admitted that medical professionals have not related his
condition to service.
In this case, the Board finds that the weight of the competent
evidence does not attribute the Veteran's chronic stomach or
intestinal condition and GERD to active duty, despite his
contentions to the contrary. STRs do not show treatment or
diagnosis of GERD. The first diagnosis was rendered in August
2001, almost 18 years after the Veteran separated from service.
STRs show treatment of stomach conditions; however, records dated
subsequent to service do not show treatment of a stomach
condition until January 1992, almost 9 years after separation
from service. Therefore, the medical evidence does not reflect
continuity of symptomatology. See Maxson v. Gober, 230 F.3d
1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical
complaints for condition can be considered as a factor in
resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354,
356 (1991) (affirming Board's denial of service connection where
veteran failed to account for lengthy time period between service
and initial symptoms of disability).
The Board places significant probative value on the December 2008
VA examination undertaken specifically to address the issue on
appeal. After a physical examination, the examiner diagnosed
dyspepsia. The examiner opined that it is unlikely that the
Veteran's dyspepsia is related to service. The examiner
reflected that the Veteran has post-prandial symptoms with slight
regurgitation, nausea, and left abdominal pain and that there is
no indication in the STRs of the same condition.
The Board finds that the examination is adequate for evaluation
purposes. Specifically, the examiner reviewed the claims file,
interviewed the Veteran, and conducted a physical examination.
There is no indication that the VA examiner was not fully aware
of the Veteran's past medical history or that he misstated any
relevant fact. Moreover, there is no contradicting medical
evidence of record. Therefore, the Board finds the VA examiner's
opinion to be of great probative value.
The Board has also considered the Veteran's statements and sworn
testimony asserting a nexus between his currently-diagnosed
disorders and active duty service. While the Board reiterates
that he is competent to report symptoms as they come to him
through his senses, stomach and intestinal disorders and GERD are
not the types of disorders that a lay person can provide
competent evidence on questions of etiology or diagnosis.
Such competent evidence has been provided by the medical
personnel who have examined the Veteran during the current appeal
and by service records obtained and associated with the claims
file. Here, the Board attaches greater probative weight to the
clinical findings than to his statements. See Cartright, 2 Vet.
App. at 25.
In light of the above discussion, the Board concludes that the
preponderance of the evidence is against the claims for service
connection and there is no doubt to be otherwise resolved. As
such, the appeals are denied.
Sinusitis and Migraine Headaches
The Veteran seeks service connection for sinusitis and migraine
headaches. STRs show that in December 1977, the Veteran
complained of sinus symptoms as well as diarrhea, headache, and
coughing. The assessment was viral in origin. In May 1978, he
complained of a headache and sinus problems. The assessment was
upper respiratory infection (URI). In January 1979, he
complained of congestion and headache. The diagnosis was sinus
problems. In February 1979, the Veteran had sinus headaches. In
December 1979, he suffered sinus pain and headaches. The
assessment was headaches, probably sinus related. In April 1981,
he was struck with an M-16 on the side of the head. He
complained of headaches. In October 1981, the RMH accompanying a
periodic examination indicated ear, nose, throat trouble;
sinusitis; hay fever; and head injury. The physician noted that
the Veteran had had sinusitis. An undated STR shows headache and
sore throat. The diagnosis was URI. Finally, the separation
examination, dated April 1983, showed no significant defects.
The accompanying RMH notes headaches.
Treatment records dated after separation from service show a
diagnosis of possible sinusitis in January 1985, almost two years
after separation from service. In July 1998, the Veteran
complained of frontal headaches. His frontal sinuses were tender
to palpation as were areas around the eyes. The diagnosis
included sinusitis and frontal headaches. Radiology testing
showed normal paranasal sinuses. A follow-up appointment almost
three weeks later showed that the sinusitis and headaches had
resolved. A diagnosis of sinusitis was rendered in May 2001,
December 2002, and June 2005. The June 2005 diagnosis was acute
sinusitis. Symptoms included frontal headaches. At a follow up
appointment one month later, the Veteran's sinusitis had
resolved. The Veteran had the same symptoms and diagnosis in
January, February and June 2006. In March 2008, he was diagnosed
with sinus problems. In May 2009, the Veteran was one again
diagnosed with sinusitis.
In May and July 2008 and April 2009, he complained of headaches
but a diagnosis was not provided. The Veteran has also been
diagnosed with allergic rhinitis and accompanying headaches since
February 2000.
While the post-service treatment records show complaint or
diagnosis of sinusitis and headaches, the medical providers did
not indicate or discuss the etiology of the disabilities in any
of the reports. Further, based upon the treating provider's
notes, it does not appear that the Veteran related his sinus
problems or headaches to service during his appointments.
Regarding allergic rhinitis, the Veteran was not diagnosed with
the condition during service and none of the post-service
treatment records indicate a relationship between it and service.
The Veteran had a VA examination for sinus issues in August 2007.
The examiner reviewed the claims file. The physical evaluation
revealed mild nasal septal deviation to the left side and some
enlargement of both inferior turbinates. He reviewed the July
2007 CT report of the paranasal sinuses, which indicated a tiny
mucous retention cyst in the left maxillary sinus and minimal
mucosal thickening in the ethmoid sinuses. These conditions were
noted as minor abnormalities. The examiner stated that because
of the minor abnormalities noted in the report, he pulled the
actual CT scan. His review of the scan revealed no positive
findings and no evidence of significant sinus disease or either
acute or chronic sinusitis. He said the tiny cyst likely
represents an incidental finding and the same is for the minimal
mucosal thickening involving the ethmoids, which in the
examiner's opinion, was not evident on the CT. The examiner
reviewed the STRs and noted that the Veteran was treated
periodically for the usual URIs, but that the STRs showed no
evidence of chronicity regarding any type of nasal problems. The
diagnosis was mild allergic rhinitis.
The examiner said that the Veteran has mild allergic rhinitis,
which appears to be well controlled, and that in his opinion, the
CT scan of the paranasal sinuses provides clear and convincing
evidence that neither acute nor chronic sinusitis is present. No
chronic nasal condition was present during active duty. He also
stated that the recurrent headaches would not be related to any
type of sinus condition since the CT scan was clear. In sum, he
found that it is less likely as not that any type of sinus
condition described by the Veteran might be related to military
service, weighing against the claim for service connection for
sinusitis.
In December 2008, he had a VA examination for his headaches. The
examiner reviewed the claims file, including STRs, and noted that
the STRs showed treatment for headaches during service but that
they were not recurrent headaches. The Veteran said he has
suffered headaches occasionally since service. The headaches are
frontal on both sides, occur three times per year, and last one
or two days. The diagnosis was migraine-like headaches. The
examiner stated that it is unlikely that this disorder is the
same as an isolated headache treated during military service as
the records show no similar headaches. Accordingly, the Board
finds that the VA examination weighs against the Veteran's claim
for service connection for headaches.
The Board also considered the Veteran's testimony. He stated
that he did not have sinus issues before service but that during
service, he suffered sinus issues when exposed to pine trees and
other outdoor allergens while at Fort Polk, Louisiana. He took
Sudafed throughout service and into the eighties for his sinus
problems. Current treatment includes a nasal inhaler and allergy
shots. He said he has never asked a professional whether his
condition is related to service. Regarding headaches, he said he
had bad migraines during service and that he currently suffers
the same condition.
In this case, the Veteran is competent to report on his symptoms
as they come to him through his senses, however, sinusitis and
migraine headaches are not the types of disorders that a lay
person can provide competent evidence on questions of etiology or
diagnosis. Such competent evidence has been provided by the
medical personnel who have examined the Veteran during the
current appeal and by service records obtained and associated
with the claims file. Here, the Board attaches greater probative
weight to the clinical findings than to his statements. See
Cartright, 2 Vet. App. at 25.
In this case, the Board finds that the weight of the competent
evidence does not attribute the Veteran's sinusitis or migraine
headaches to active duty, despite his contentions to the
contrary. The STRs show one incident of sinusitis during
service, however, sinusitis was not indicated on the separation
examination. After service, the Veteran was diagnosed as
possibly having sinusitis in January 1985. He was not
definitively diagnosed with sinusitis and treated for it until
July 1998, almost 15 years after separation from service,
weighing against a finding of a chronic disability originating in
service.
Regarding headaches, the STRs show complaints of headaches during
service, however, the headaches appear to have been caused by or
related to viral or sinus problems. Migraine headaches were not
treated or diagnosed during service. The separation examination
failed to note headaches. Treatment records dated after
separation from service show symptoms including headaches;
however, migraine headaches were not diagnosed until the VA
examination in December 2008, almost 25 years after separation
from service.
The Board places significant probative value on the VA
examinations undertaken specifically to address the issue on
appeal. After a physical examination, the examiners diagnosed
mild allergic rhinitis and migraine-like headaches. The
examiners opined that it is unlikely that the Veteran's
disabilities are related to service. The examiner reflected that
there is no indication in the STRs of the same conditions.
The Board finds that the examinations are adequate for evaluation
purposes. Specifically, the examiners reviewed the claims file,
interviewed the Veteran, and conducted physical examinations.
There is no indication that VA examiners were not fully aware of
the Veteran's past medical history or that he misstated any
relevant fact. Moreover, there is no contradicting medical
evidence of record. Therefore, the Board finds the VA examiner's
opinion to be of great probative value.
The Board has also considered the Veteran's statements and sworn
testimony asserting a nexus between his currently-diagnosed
disorders and active duty service. While the Board reiterates
that he is competent to report symptoms as they come to him
through his senses, sinusitis and migraines are not the types of
disorders that a lay person can provide competent evidence on
questions of etiology or diagnosis.
Such competent evidence has been provided by the medical
personnel who have examined the Veteran during the current appeal
and by service records obtained and associated with the claims
file. Here, the Board attaches greater probative weight to the
clinical findings than to his statements. See Cartright, 2 Vet.
App. at 25.
The Board has considered all of the evidence but finds that the
preponderance of the evidence is against the claim for service
connection for sinusitis and migraine headaches and there is no
doubt to be otherwise resolved. As such, the appeals are denied.
Skin Condition
The Veteran seeks service connection for pseudofolliculitis
barbae, a skin condition of the face and neck that appears after
shaving. STRs show that the Veteran was treated in 1976 and 1978
for the condition and was put on profile in October 1976 with
shaving restrictions. The separation examination did not
indicate a continuing chronic skin problem.
Treatment records dated subsequent to service fail to show
treatment for a skin condition of the face, including
pseudofolliculitis. A VA examination, dated December 2008, shows
that the examiner reviewed the claims file and STRs and noted
that the Veteran was treated in the military for
pseudofolliculitis. The Veteran reported that he controls the
condition by not shaving except on the neck. He said he rarely
gets lesions. The physical examination showed no lesions of the
skin, including on the face. The diagnosis was
pseudofolliculitis barbae, resolved. The examiner said that the
Veteran has a beard covering most of the face and down just over
the mandible. Where he shaves his neck, no lesions were noted.
He concluded that the pseudofolliculitis is now inactive.
In support of his claim, the Veteran submitted a letter from his
barber of 17 years. The barber stated that the Veteran has a
facial issue caused by the use of a razor on his face when he
shaves. He said that he has used several methods to shave the
Veteran's face but that his face never accepted shaving. The
only way that the Veteran can prevent the bumps is to eliminate
the use of a razor or grow a beard.
During his testimony, the Veteran stated that the condition
started in service. He said that his barber treats him for it.
In this case, the Board finds that the Veteran's barber has
actual knowledge of the Veteran's skin condition and that this
disability is within the realm of the barber's expertise.
Accordingly, the Board finds that the Veteran should be given the
benefit of the doubt that his condition, while inactive, has not
resolved, and had onset during service.
The appeal is granted.
Tinnitus and Bilateral Hearing Loss
Certain chronic diseases, including sensorineural hearing loss,
may be presumed to have been incurred in or aggravated by service
if manifest to a compensable degree within one year of discharge
from service. See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307,
3.309.
A "hearing loss" disability is defined for VA compensation
purposes with regard to audiologic testing involving puretone
frequency thresholds and speech discrimination criteria. 38
C.F.R. § 3.385. For purposes of applying the laws administered
by VA, impaired hearing will be considered to be a disability
when the auditory threshold in any of the frequencies of 500,
1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater;
or when the auditory thresholds for at least three of the
frequencies are 26 decibels or greater; or when speech
recognition scores using the Maryland CNC Test are less than 94
percent. Id.
The threshold for normal hearing is from 0 to 20 decibels, and
higher threshold levels indicate some degree of hearing loss.
Hensley v. Brown, 5 Vet. App. 155, 157 (1993).
The Veteran is seeking entitlement to service connection for
bilateral hearing loss and tinnitus, which he asserts was caused
by noise exposure during his active military service. The
entrance examination, dated August 1974, showed normal hearing in
both ears, with auditory thresholds measuring 0, 0, 5, 0, and 5
decibels in the right ear and 5, 5, 5, 0, and 5 decibels in the
left ear at frequencies of 500, 1000, 2000, 3000, and 4000 Hertz.
An undated periodic examination showed auditory thresholds
measuring 15, 25, 10, 10, and 10 decibels in the right ear and
10, 0, -5, 10, and 10 decibels in the left ear at frequencies of
500, 1000, 2000, 3000, and 4000 Hertz. The separation
examination, dated April 1983, used the audiology testing results
from October 1982. This examination also showed normal hearing
in both ears, with auditory thresholds measuring 20, 20, 10, 10,
and 10 decibels in the right ear and 15, 10, 5, 10, and 15
decibels in the left ear at frequencies of 500, 1000, 2000,
3,000, and 4000 Hertz. Because none of the auditory threshold in
any of the frequencies measured 40 decibels or greater and at
least three did not measure 26 decibels or greater, the Veteran
did not have a hearing loss disability for VA purposes during
service or at the time of separation from service. Further, none
of the service treatment records (STRs) indicate complaint,
treatment, or diagnosis of tinnitus. In sum, the STRs weigh
against the claims for service connection for bilateral hearing
loss and tinnitus.
In December 2008, the Veteran had a VA audiology examination.
The examiner reviewed the claims file and noted that the
Veteran's hearing was within normal limits during his period of
active service. He found no complaints or diagnosis of tinnitus
in the STRs but noted the Veteran's injury to the tympanic
membrane. The Veteran's history showed no combat experience, but
showed weapons training and civilian work as a laundry machine
operator for 26 years. He said he used hearing protection during
these activities. The Veteran said his tinnitus started in 1979
or 1980 when he was hit on the right ear by another player's head
while playing sports.
The examination revealed auditory thresholds measuring 15, 15,
10, 10, and 20 decibels in the right ear and 10, 15, 15, 25, and
40 decibels in the left ear at frequencies of 500, 1000, 2000,
3000, and 4000 Hertz. The speech recognition scores were 96 in
each ear. Unfortunately, the results show that Veteran does not
have a hearing loss disability in the right ear for VA purposes.
Because his auditory threshold at 4000 Hertz measured 40 in the
left ear, he has a hearing loss disability for VA purposes.
The diagnosis was normal hearing in the right ear and mild
sensorineural hearing loss at 4000 Hertz in the left ear. In the
opinion, the examiner stated that neither the left hearing loss
nor the reported tinnitus are caused by or the result of military
duties. The Veteran did not have hearing loss or tinnitus during
service and he said it is commonly accepted in Audiology that
when a person is removed from a noisy environment, the hearing
should not change. Some exceptions to this rule include the
aging process, further noise exposure, medications, and
illnesses. He also stated that it is also commonly accepted that
hearing loss and tinnitus will take place at the time of noise
exposure or soon afterwards but not years later, weighing against
the Veteran's claim for service connection for hearing loss and
tinnitus.
During the VA examination for perforation of the right ear drum,
also conducted in December 2008, the Veteran said he was exposed
to live fire during military training exercises but that he wore
ear protection. The examination showed minimal scarring
resulting from the in-service rupture of the right ear drum,
which the examiner classified as an aesthetic rather than
functional issue. The examiner stated that he cannot place a
nexus between the history of a right tympanic membrane
perforation with current minimal scarring and the current
complaints of hearing loss and tinnitus. Based upon his review
of the claims file and the current evaluation, the examiner
stated that it is less likely than not that any significant
residuals from the tympanic membrane rupture might currently be
present. He also noted that he was unable to find evidence of
hearing loss and tinnitus during service and that the Veteran's
history of hearing loss and tinnitus would not suggest that
either disability might have been incurred during service,
weighing against the claims for service connection.
Other treatment records since service fail to show bilateral
hearing loss. A private treatment record dated June 2008 shows
complaint of tinnitus; however a diagnosis and etiology were not
indicated.
In March 2010, during his testimony before the Board, the Veteran
said he was with the infantry and worked with tanks and armored
personnel carriers and was exposed to gunfire. He said that
after live fire exercises he would have buzzing and ringing in
his ears and that he currently suffers the same symptoms. He
said he did not notice hearing loss during service and did not
seek treatment for it at that time. He and his spouse testified
that he currently has problems hearing others and the television.
They believe that his current hearing loss and tinnitus are due
to noise exposure in service.
In this case, the Veteran's reported history of continued
symptomatology since active service, while competent, is
nonetheless not credible. The Board emphasizes the multi-year
gap between discharge from active duty service (1983) and initial
reported symptoms related to hearing loss and tinnitus in 2008 (a
25-year gap). See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed.
Cir. 2000) (lengthy period of absence of medical complaints for
condition can be considered as a factor in resolving claim); see
also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming
Board's denial of service connection where veteran failed to
account for lengthy time period between service and initial
symptoms of disability). Upon weighing the Veteran's statements
as to continuity of symptomatology, the Board finds his current
recollections and statements made in connection with the claims
to be of lesser probative value. See Pond v. West, 12 Vet. App.
341 (1999) (although Board must take into consideration the
veteran's statements, it may consider whether self-interest may
be a factor in making such statements). Therefore, continuity
has not here been established, either through the competent
evidence or through his statements.
Based upon the evidence, the Board finds that service connection
for right ear hearing loss is not warranted because the Veteran
does not have a current disability. See 38 U.S.C.A. § 1110 (West
2002); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress
specifically limits entitlement for service-connected disease or
injury to cases where such incidents have resulted in a
disability). "In the absence of proof of a present disability
there can be no valid claim." See Brammer v. Derwinski, 3 Vet.
App. 223, 225 (1992).
Service connection for left ear hearing loss and tinnitus are not
warranted as the Veteran did not have either condition during
service and neither was noted in the separation examination. He
was not diagnosed as having hearing loss and tinnitus until 2008,
approximately 25 years after separation from service, which
weighs against the claim. Further, the December 2008 VA
audiologist and medical doctor indicated that there is no nexus
between service and the current left ear hearing loss and
tinnitus, which weighs heavily against the claim.
The Board considered the Veteran's statements and sworn testimony
asserting a nexus between his currently-diagnosed left ear
hearing loss and tinnitus and service. While the Veteran is
competent to report symptoms as they come to him through his
senses, hearing loss and tinnitus are not the types of disorders
that a lay person can provide competent evidence on questions of
etiology or diagnosis.
Such competent evidence has been provided by the medical
personnel who have examined the Veteran during the current appeal
and by service records obtained and associated with the claims
file. Here, the Board attaches greater probative weight to the
clinical findings than to his statements. See Cartright, 2 Vet.
App. at 25.
In light of the above discussion, the Board concludes that the
preponderance of the evidence is against the claim for service
connection for bilateral hearing loss and tinnitus and there is
no doubt to be otherwise resolved. As such, the appeals are
denied.
Residuals of a Cold Injury, Cold Feet
The Veteran seeks service connection for residuals of cold
injuries to his feet. Specifically, he testified before the
Board that he suffered injuries to his feet while serving in the
infantry as a result of prolonged exposure to cold weather. He
testified that he was treated during service on two occasions for
the condition and that the diagnosis was cold feet.
STRs show that the Veteran sought treatment for his feet in March
1978 at which time he complained of a burning sensation. He
stated that he was in the field for four days. The physical
evaluation showed good circulation in both feet. The physician
found no evidence of cold weather injuries. The assessment was
cold feet. In February 1979, the Veteran complained of cold
injuries to his feet, including tingling on the bottoms of his
feet. The diagnosis was mild cold injuries. In March 1980, he
was treated for left leg pain. He also said his feet were
bothering him secondary to exposure to cold weather. The
physician noted the history of a previous cold injury identified
in the chart as cold feet. The diagnosis was normal legs. He
did not provide a diagnosis for the feet. The October 1981 RMH
physician noted frozen feet in Kentucky 1979. At separation, in
his report of medical history, the Veteran indicated foot
problems. The separation examination did not find abnormalities
with the feet.
Treatment records since service fail to show complaint or
treatment of cold injuries to the feet. The Veteran had a VA
examination in December 2008. The examiner reviewed the claims
file and noted the first complaint of cold feet in 1978. The
Veteran said he was exposed to cold weather for 45 days and that
he had to come in early from duty because of bilateral foot pain.
He noted a similar incident in 1981. The examiner also noted the
in-service diagnosis of cold feet and frozen feet, and the
separation examination's indication of normal feet.
The Veteran reported that his feet are sensitive to cold starting
at 50 degrees or below. He reported daily tingling of the feet
and occasional numbness. He wears thick socks year round. His
feet are aggravated by walking one and a half blocks and standing
for 15 minutes or longer. The physical evaluation found
decreased vibratory sensation in both feet. The x-rays showed
mild bilateral hallux valgus. The diagnosis was mild bilateral
hallux valgus. The examiner stated that the Veteran's current
bilateral foot pains are less likely than not related to cold
injury. He stated that there is not enough evidence in the
claims file to indicate a relationship between the current
condition and service.
In this case, the Board finds that service connection cannot be
granted as the evidence fails to show a current cold injury
disability or residuals to the feet. The VA examiner found only
hallux valgus. No relationship to service was indicated. He
stated that the Veteran's current bilateral foot pains are less
likely than not related to cold injury. The Board notes that VA
does not generally grant service connection for symptoms alone,
without an identified basis for those symptoms. For example,
"pain alone, without a diagnosed or identifiable underlying
malady or condition, does not in and of itself constitute a
disability for which service connection may be granted."
Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal
dismissed in part, and vacated and remanded in part sub nom.
Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001);
Evans v. West, 12 Vet. App. 22, 31-32 (1998).
Further, the STRs do not appear to indicate chronic injuries to
the feet resulting from cold exposure. The separation
examination showed that the Veteran's feet were normal.
Even if the Board concedes that the Veteran has a current
diagnosed disability, the evidence does not support a finding of
service connection. The Board considered the Veteran's
statements and sworn testimony asserting a nexus between his
alleged cold injuries to the feet and service. While the Veteran
is competent to report symptoms as they come to him through his
senses, cold injuries and residuals are not the types of
disorders that a lay person can provide competent evidence on
questions of etiology or diagnosis.
Such competent evidence has been provided by the medical
personnel who have examined the Veteran during the current appeal
and by service records obtained and associated with the claims
file. Here, the Board attaches greater probative weight to the
clinical findings than to his statements. See Cartright, 2 Vet.
App. at 25.
Finally, the Board emphasizes the multi-year gap between
discharge from active duty service (1983) and initial reported
symptoms related to cold injuries in 2008 (a 25-year gap). See
Maxson, 230 F.3d at 1333; see also Mense, 1 Vet. App. at 356.
Upon weighing the Veteran's statements as to continuity of
symptomatology, the Board finds his current recollections and
statements made in connection with the claims to be of lesser
probative value. See Pond, 12 Vet. App. 341. Therefore,
continuity has not here been established, either through the
competent evidence or through his statements.
In light of the above discussion, the Board concludes that the
preponderance of the evidence is against the claim for service
connection for cold injuries to the feet and residuals, and there
is no doubt to be otherwise resolved. As such, the appeal is
denied.
Hemorrhoids
The Veteran seeks service connection for hemorrhoids. STRs show
that he was treated for hemorrhoids in August and September 1979.
The condition was not noted in his April 1983 separation
examination. Private treatment records show that the Veteran has
been treated for hemorrhoids since 2004. In August 2004, the
Veteran had colorectal surgery performed by Dr. J.D.H., MD.
December 2004 and June 2005 records from Dr. R.B., MD states that
the Veteran's condition has improved since colorectal surgery.
Records from Dr. J.D.H. dated in 2007 also show diagnosis and
treatment of hemorrhoids. A letter dated September 2008 from Dr.
J.S.S., MD indicates that Dr. J.D.H. performed hemorrhoid surgery
on the Veteran eight days prior. Surgical records have been
obtained.
The Veteran had a VA examination in December 2008. The examiner
stated that the Veteran was treated in service for the condition.
The physical examination disclosed no evidence of hemorrhoids.
The diagnosis was hemorrhoids, status post treatment of external
hemorrhoids with banding, with resolution and no significant
residuals. He stated that the current condition is the same as
was treated during service.
Based upon the evidence, the Board finds that service connection
for residuals of hemorrhoids should be granted. While the
Veteran may not currently have hemorrhoids as a result of his
September 2008 surgery, the evidence shows that he had the
condition during the pendency of his initial claim and appeal.
Accordingly, giving the Veteran the benefit of the doubt, the
Board finds that service connection for hemorrhoids is granted.
Bilateral Hip Disability,
The Veteran seeks service connection for bilateral hip
disabilities. STRs do not show treatment or diagnosis of the
hips during service. The separation examination also fails to
show a diagnosis of a bilateral hip disability.
Records dated subsequent to service show that the Veteran was
treated in June 1986 for right hip pain. The pain was caused by
lifting mops the wrong way. A VA outpatient treatment record
dated April 2009 shows a diagnosis of degenerative joint disease
of all joints; however the hips were not specifically mentioned
and the etiology was not discussed. No other treatment records
show a bilateral hip disability or indicate a relationship to
service. During his Board hearing, the Veteran said that his
bilateral hip disability was not caused by a specific event in
service. Instead, he said he believed that carrying rucksacks
and weapons caused the wear and tear on his hips.
After considering all of the evidence, the Board finds that
service connection for bilateral hip disabilities is not
warranted. The Veteran's hips were not injured or treated in
service. Treatment records dated subsequent to service fail to
show any relationship between the Veteran's service and bilateral
hip disability. The Veteran's testimony does not support a
finding of service connection because, while he can testify about
his symptoms, such as pain, he is not capable of rendering a
diagnosis or opinion about a disability that is not readily
observable. Simply, degenerative joint disease is not the type
of disorder that a lay person can provide competent evidence on
questions of etiology or diagnosis. Further, he is unable to
identify a specific injury or event that could have caused the
disability. Finally, the Board does not give great weight to the
Veteran's allegation of continuity of symptomatology as he was
not treated or diagnosed with hip disabilities until 2009, more
than 25 years after separation from service. See Maxson, 230
F.3d at 1333; see also Mense, 1 Vet. App. at 356.
Consequently, the Board finds that the preponderance of the
evidence is against the claim for service connection for
bilateral hip disability. The benefit-of-the-doubt standard of
proof does not apply. 38 U.S.C.A. § 5107(b).
Hyperlipidemia and Leukopenia
The Veteran seeks service connection for hyperlipidemia and
leukopenia. First, the Board finds that service connection for
the Veteran's high cholesterol must be denied. While post-
service treatment records indicate that the Veteran has been
diagnosed with hyperlipidemia, service connection can only be
granted for a disability resulting from disease or injury. 38
U.S.C.A. § 1110. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996)
(stating in supplementary information preceding a final rule
amending the criteria for evaluating endocrine system
disabilities indicates that diagnoses of hyperlipidemia, elevated
triglycerides, and elevated cholesterol are actually laboratory
test results, and are not, in and of themselves, disabilities);
see also Allen v. Brown, 7 Vet. App. 439, 448 (1995) (noting that
based on the definition found in 38 C.F.R. § 4.1, the term
disability "should be construed to refer to impairment of
earning capacity due to disease, injury, or defect, rather than
to the disease, injury, or defect itself").
Despite the diagnosis of hyperlipidemia, it is a laboratory
finding that manifests itself only in laboratory test results and
is not a disability for which service connection can be granted.
Accordingly, because the Veteran does not have a current
disability for which service connection may be granted, service
connection for hyperlipidemia must be denied.
Regarding leukopenia, STRs do not show treatment or diagnosis of
the disability during service. The separation examination also
fails to show a diagnosis of the disability. The Veteran last
had a diagnosis of leukopenia in July 2006, prior to the filing
of the claim for service connection. Treatment records dated
since July 2006 fail to show a continued diagnosis of leukopenia.
Service connection may only be granted for a current disability;
when a claimed condition is not shown, there may be no grant of
service connection. See 38 U.S.C.A. § 1110; Rabideau, 2 Vet.
App. 141. "In the absence of proof of a present disability
there can be no valid claim." See Brammer, 3 Vet. App. at 225.
Since the evidence fails to show a current disability, service
connection for leukopenia is denied.
Accordingly, because the Veteran does not have a current
disability for which service connection may be granted, the Board
concludes that the preponderance of the evidence is against the
claims, and service connection for hyperlipidemia and leukopenia
must be denied.
Increased Rating
Disability ratings are determined by applying the criteria set
forth in VA's Schedule for Rating Disabilities, which is based on
the average impairment of earning capacity. Individual
disabilities are assigned separate diagnostic codes. 38 U.S.C.A.
§ 1155; 38 C.F.R. § 4.1. If two evaluations are potentially
applicable, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria required
for that rating; otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7. When reasonable doubt arises as to the degree
of disability, such doubt will be resolved in the Veteran's
favor. 38 C.F.R. § 4.3.
Pertinent regulations do not require that all cases show all
findings specified by the Rating Schedule, but that findings
sufficiently characteristic to identify the disease and the
resulting disability and above all, coordination of rating with
impairment of function will be expected in all cases. 38 C.F.R.
§ 4.21. Therefore, the Board has considered the potential
application of various other provisions of the regulations
governing VA benefits, whether or not they were raised by the
Veteran, as well as the entire history of the veteran's
disability in reaching its decision. Schafrath v. Derwinski, 1
Vet. App. 589, 595 (1991).
In deciding the Veteran's increased evaluation claim, the Board
has considered the determinations in Fenderson v. West, 12 Vet.
App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007),
and whether the Veteran is entitled to an increased evaluation
for separate periods based on the facts found during the appeal
period. In Fenderson, the U.S. Court of Appeals for Veterans
Claims (Court) held that evidence to be considered in the appeal
of an initial assignment of a rating disability was not limited
to that reflecting the then current severity of the disorder.
The Court also discussed the concept of the "staging" of
ratings, finding that, in cases where an initially assigned
disability evaluation has been disagreed with, it was possible
for a veteran to be awarded separate percentage evaluations for
separate periods based on the facts found during the appeal
period (as in this case). Id. at 126.
Here, the Veteran seeks a compensable rating for service
connected hepatitis B, rated under 38 C.F.R. § 4.114, Diagnostic
Code (DC) 7345. Chronic liver disease that is nonsymptomatic is
rated as noncompensable (0 percent). Chronic liver disease with
intermittent fatigue, malaise, and anorexia, or; incapacitating
episodes (with symptoms such as fatigue, malaise, nausea,
vomiting, anorexia, arthralgia, and right upper quadrant pain)
having a total duration of at least one week, but less than two
weeks, during the past 12- month period, is rated 10 percent
disabling. Chronic liver disease with daily fatigue, malaise,
and anorexia (without weight loss or hepatomegaly), requiring
dietary restriction or continuous medication, or; incapacitating
episodes (with symptoms such as fatigue, malaise, nausea,
vomiting, anorexia, arthralgia, and right upper quadrant pain)
having a total duration of at least two weeks, but less than four
weeks, during the past 12-month period, is rated 20 percent
disabling. 38 C.F.R. § 4.114, DC 7345.
Note (1) to Diagnostic Code 7345 provides that sequelae, such as
cirrhosis or malignancy of the liver, is to be rated under an
appropriate diagnostic code, but not to use the same signs and
symptoms as the basis for rating under Diagnostic Code 7354 and
under a diagnostic code for sequelae. Note (2) provides that,
for purposes of rating conditions under DC 7345, "incapacitating
episode" means a period of acute signs and symptoms severe
enough to require bed rest and treatment by a physician. Note
(3) provides that hepatitis B infection must be confirmed by
serologic testing in order to rate it under DC 7345. See 38
C.F.R. § 4.114.
The Veteran contends that his hepatitis is more disabling than
currently evaluated and warrants the assignment of a compensable
rating. In this case, the preponderance of the evidence reflects
that the Veteran's hepatitis is essentially asymptomatic.
Specifically, the evidence fails to show any treatment for
hepatitis B since service. The December 2008 VA examiner
reviewed the claims file and stated that the Veteran has not had
a relapse of hepatitis since service. The diagnosis was acute
hepatitis, documented in 1977, with positive antibody tests since
that time indicating immunity to hepatitis. He stated that there
is no indication of chronic or recurrent hepatitis in claims file
records and that the antibody test indicates a successful
recovery. Thus, it is the Board's determination that a
compensable rating is not warranted. Nonsymptomatic liver
disease is noncompensable.
The Board also considered the Veteran's testimony. He stated
that his hepatitis B causes severe pain, diarrhea, and fatigue
and has prevented him from coaching. The Board does not doubt
that the Veteran may suffer the symptoms listed herein; however,
medical professionals have not attributed the symptoms to his
hepatitis B. In fact, the VA examiner has indicated that the
Veteran has fully recovered from his hepatitis B.
In light of the foregoing, a compensable rating for the Veteran's
service-connected hepatitis is not warranted at any period of
time during the pendency of this appeal. See Fenderson, 12 Vet.
App. 119; Hart, 21 Vet. App. 505. In reaching this
determination, the Board acknowledges that VA is statutorily
required to resolve the benefit of the doubt in favor of the
Veteran when there is an approximate balance of positive and
negative evidence regarding the merits of an outstanding issue.
That doctrine, however, is not applicable in this case because
the preponderance of the evidence is against the Veteran's claim.
38 U.S.C.A. § 5107(b); see also Ortiz v. Principi, 274 F.3d 1361,
1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the
doubt rule is inapplicable when the preponderance of the evidence
is found to be against the claimant"); Gilbert, 1 Vet. App. at
49, 55.
The Board has also considered whether the record raises the
matter of an extraschedular rating under 38 C.F.R. § 3.321(b)(1)
(2010). In exceptional cases where schedular evaluations are
found to be inadequate, consideration of an extraschedular
evaluation commensurate with the average earning capacity
impairment due exclusively to the service-connected disability or
disabilities may be made. The governing norm in an exceptional
case is a finding that the case presents such an exceptional or
unusual disability picture with such related factors as marked
interference with employment or frequent periods of
hospitalization as to render impractical the application of the
regular schedular standards. 38 C.F.R § 3.321(b)(1).
In a recent case, the United States Court of Appeals for Veterans
Claims (Court) clarified the analytical steps necessary to
determine whether referral for extraschedular consideration is
warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First,
the RO or the Board must determine whether the evidence presents
such an exceptional disability picture that the available
schedular evaluations for that service-connected disability are
inadequate. Second, if the schedular evaluation does not
contemplate the Veteran's level of disability and symptomatology
and is found inadequate, the RO or Board must determine whether
the claimant's exceptional disability picture exhibits other
related factors such as those provided by the regulation as
"governing norms." Third, if the rating schedule is inadequate
to evaluate a Veteran's disability picture and that picture has
attendant thereto related factors such as marked interference
with employment or frequent periods of hospitalization, then the
case must be referred to the Under Secretary for Benefits or the
Director of the Compensation and Pension Service to determine
whether, to accord justice, the Veteran's disability picture
requires the assignment of an extraschedular rating.
The Veteran's manifestations of his service-connected hepatitis B
are contemplated by the rating criteria. Here, the rating
criteria reasonably describe the Veteran's disability level and
symptomatology and provide for higher ratings for additional or
more severe symptoms than currently shown by the evidence. Thus,
his disability picture is contemplated by the rating schedule,
and the assigned schedular evaluations are, therefore, adequate.
Referral for consideration of extraschedular ratings is,
therefore, not warranted.
The Court has recently held that a request for a TDIU, whether
expressly raised by a claimant or reasonably raised by the
record, is an attempt to obtain an appropriate rating for
disability or disabilities, and is part of a claim for increased
compensation. There must be cogent evidence of unemployability in
the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009),
citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). In the
instant case, the holding of Rice is inapplicable since the
evidence of record does not demonstrate that the Veteran has been
rendered unemployable due solely to his service-connected
hepatitis B, nor has the Veteran or his representative so
alleged. Thus, at this point, there is no cogent evidence of
unemployability and entitlement to increased compensation based
on TDIU is not warranted.
The Duty to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the United States Department of Veterans Affairs (VA) has
a duty to notify and assist claimants in substantiating a claim
for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107,
5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a),
3.159 and 3.326(a) (2009).
Upon receipt of a complete or substantially complete application
for benefits, VA is required to notify the claimant and his or
her representative, if any, of any information, and any medical
or lay evidence, that is necessary to substantiate the claim.
38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v.
Principi, 16 Vet. App. 183 (2002). Proper notice from VA must
inform the claimant of any information and evidence not of record
(1) that is necessary to substantiate the claim; (2) that VA will
seek to provide; and (3) that the claimant is expected to provide
in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be
provided prior to an initial unfavorable decision on a claim by
the agency of original jurisdiction, or regional office (RO).
Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006);
Pelegrini v. Principi, 18 Vet. App. 112 (2004).
In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court
of Appeals for Veterans Claims held that, upon receipt of an
application for a service-connection claim, 38 U.S.C.A. § 5103(a)
and 38 C.F.R. § 3.159(b) require VA to provide the claimant with
notice that a disability rating and an effective date for the
award of benefits will be assigned if service connection is
awarded. Regarding the increased rating claim, because the
Veteran is challenging the initial evaluation assigned following
the grant of service connection, typical service-connection claim
has been more than substantiated, thereby rendering section
5103(a) notice no longer required because the purpose that the
notice is intended to serve has been fulfilled. Id. at 490-91.
Thus, because the notice that was provided before service
connection was granted was legally sufficient, VA's duty to
notify in this case has been satisfied.
Regarding the service connection claims, the VCAA duty to notify
was satisfied by way of letters sent to the Veteran in January
2006, August 2006, March 2007, September 2007, and March 2008,
that fully addressed all notice elements and were sent prior to
the initial RO decisions in this matter. The letters informed
the Veteran of what evidence was required to substantiate the
claims and of his and VA's respective duties for obtaining
evidence.
VA has a duty to assist the Veteran in the development of the
claim. This duty includes assisting the Veteran in the
procurement of service medical records and pertinent treatment
records and providing an examination when necessary. 38 U.S.C.A.
§ 5103A; 38 C.F.R. § 3.159.
In determining whether the duty to assist requires that a VA
medical examination be provided or medical opinion obtained with
respect to a veteran's claim for benefits, there are four factors
for consideration. These four factors are: (1) whether there is
competent evidence of a current disability or persistent or
recurrent symptoms of a disability; (2) whether there is evidence
establishing that an event, injury, or disease occurred in
service, or evidence establishing certain diseases manifesting
during an applicable presumption period; (3) whether there is an
indication that the disability or symptoms may be associated with
the veteran's service or with another service-connected
disability; and (4) whether there otherwise is sufficient
competent medical evidence of record to make a decision on the
claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4).
With respect to the third factor above, the Court of Appeals for
Veterans Claims has stated that this element establishes a low
threshold and requires only that the evidence "indicates" that
there "may" be a nexus between the current disability or
symptoms and the veteran's service. The types of evidence that
"indicate" that a current disability "may be associated" with
military service include, but are not limited to, medical
evidence that suggests a nexus but is too equivocal or lacking in
specificity to support a decision on the merits, or credible
evidence of continuity of symptomatology such as pain or other
symptoms capable of lay observation. McLendon v. Nicholson, 20
Vet. App. 79 (2006).
In this case, a VA examination was not ordered for the claim
seeking service connection for leukopenia because the Veteran did
not have a diagnosis of the disability at the time of his claim
or at any time throughout the pendency of the appeal. A VA
examination was not ordered for the bilateral hip disability
because the STRs failed to show an injury or treatment of the
hips during service.
The language of the regulation is clear that the
evidence must, in fact, establish that an injury or
event occurred in service. The first prong of §
3.159(c)(f)(i) requires that there be competent
evidence of a current disability, while the third
prong requires that there be an indication that the
current disability relates to service. By contrast,
the in-service event, injury, or disease prong does
not qualify the quality of evidence necessary to meet
its threshold: the evidence must establish that there
was a disease, injury, or event in service.
Bardwell v. Shinseki, 24 Vet.App. 36, 39 (Vet.App. 2010).
Records subsequent to service show an injury in 1986. Other
records indicate degenerative joint disease of all joints,
however, the hips were not specifically mentioned and the
etiology was not discussed. Other than the Veteran's testimony
that carrying heavy packs during service may have caused the
disability, there is no indication of an injury during service.
In this case, the Board finds that the Veteran's assertion of
injuring his hips while carrying heavy loads to be not credible.
The STRs do not show an event or injury to the hips during
service. Therefore, a VA examination is not warranted for this
claim.
Finally, a VA examination is not warranted for the claim seeking
service connection for hyperlipidemia as the condition is a
symptom and not a disability subject to service connection.
The Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed without
prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384
(1993). The RO has obtained VA outpatient treatment records and
private treatment records. The Veteran submitted private
treatment records, statements and buddy statements and was
provided an opportunity to set forth his contentions during the
hearing before the undersigned Veterans Law Judge.
Significantly, neither the Veteran nor his representative has
identified, and the record does not otherwise indicate, any
additional existing evidence that is necessary for a fair
adjudication of the claim that has not been obtained. Hence, no
further notice or assistance to the Veteran is required to
fulfill VA's duty to assist in the development of the claim.
Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384
(Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001);
see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
ORDER
Service connection for a chronic stomach or intestinal disorder
is denied.
Service connection for gastroesophageal reflux disease (GERD) is
denied.
Service connection for chronic sinusitis is denied.
Service connection for migraine headaches is denied.
Service connection for pseudofolliculitis is granted.
Service connection for tinnitus is denied.
Service connection for bilateral hearing loss is denied.
Service connection for residuals of a cold injury, bilateral feet
is denied.
Service connection for hemorrhoids is granted.
Service connection for degenerative joint disease of the hips,
bilaterally is denied.
Service connection for leukopenia is denied.
Service connection for hyperlipidemia is denied.
Entitlement to a compensable rating for service-connected
hepatitis B is denied.
REMAND
In this case, the Veteran seeks service connection for a sleep
disorder with insomnia. STRs show that the Veteran sought
treatment for sleep troubles in March 1976. In October 1981 and
April 1983 reports of medical history, the Veteran indicated
having trouble sleeping. The physician reviewing the October
1981 RMH stated that the Veteran had frequent trouble sleeping.
Subsequent to service, a treatment record dated August 2001 shows
a diagnosis of fatigue and notes that the condition was probably
the result of allergies, insomnia, and deconditioning. The
diagnosis included insomnia. In July 2006, the Veteran told Dr.
R.B., MD that he was not sleeping well and that he has had
problems sleeping since service. The diagnosis included fatigue,
snoring, and insomnia. A May 2008 record from Dr. H. B.H., MD,
shows that the Veteran complained of fatigue. VA outpatient
treatment records dated April 2009 show that the Veteran reported
having sleep troubles since service. A VA examination was not
conducted.
The Veteran also seeks service connection for hypertension. The
Veteran has a current diagnosis of hypertension. His entrance
examination showed a blood pressure reading of 132/70. STRs show
blood pressure at 130/70 in March 1976; 126/95 in February 1979;
138/94 in December 1979, with a notation that the Veteran had no
history of hypertension; 140/70 in November 1982; and 112/76 at
separation from service in April 1983. The Veteran was not
diagnosed with hypertension during service. Available evidence
shows that the Veteran has been treated for hypertension since
1999. During his testimony, the Veteran stated that during
service he went on sick call for hypertension but that the
doctors would not acknowledge the condition. The Veteran
contends that his hypertension had onset during service. A VA
examination was not conducted.
In determining whether the duty to assist requires that a VA
medical examination be provided or medical opinion obtained with
respect to a veteran's claim for benefits, there are four factors
for consideration. These four factors are: (1) whether there is
competent evidence of a current disability or persistent or
recurrent symptoms of a disability; (2) whether there is evidence
establishing that an event, injury, or disease occurred in
service, or evidence establishing certain diseases manifesting
during an applicable presumption period; (3) whether there is an
indication that the disability or symptoms may be associated with
the veteran's service or with another service-connected
disability; and (4) whether there otherwise is sufficient
competent medical evidence of record to make a decision on the
claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4).
With respect to the third factor above, the Court of Appeals for
Veterans Claims has stated that this element establishes a low
threshold and requires only that the evidence "indicates" that
there "may" be a nexus between the current disability or
symptoms and the veteran's service. The types of evidence that
"indicate" that a current disability "may be associated" with
military service include, but are not limited to, medical
evidence that suggests a nexus but is too equivocal or lacking in
specificity to support a decision on the merits, or credible
evidence of continuity of symptomatology such as pain or other
symptoms capable of lay observation. McLendon v. Nicholson, 20
Vet. App. 79 (2006).
In this case, because the evidence indicates that there may be a
relationship between the Veteran's insomnia and hypertension and
service, a VA examination is warranted to determine the nature
and etiology of the Veteran's disabilities.
The Veteran also seeks service connection for a back disability
and bilateral knee disability. He had a VA examination for these
disabilities in December 2008; unfortunately the examiner stated
that there was not enough information in the claims file to
render an opinion regarding the etiology of the Veteran's
disabilities. The examiner did not state why he was unable to
render an opinion. Since that time, the Veteran has submitted a
letter from Dr. H.B.H., MD, indicating a nexus between the back
disability and service. Unfortunately the opinion lacks a
supporting rationale that addresses injuries suffered after
service. Based upon the lack of rationales provided by the VA
examiner and private physician, the Board finds that the opinions
are inadequate and that new VA examinations should be scheduled
to determine the nature and etiology of the Veteran's back and
knee disabilities.
Finally, the Veteran seeks service connection for major
depressive disorder including as secondary to service connected
hepatitis. Treatment records indicate that the major depressive
disorder is secondary to the Veteran's chronic pain -
specifically his chronic back pain. Since several orthopedic
disabilities are being remanded for additional development,
including the claim seeking service connection for a back
disability, the Board finds that these claims are inextricably
intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris
v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are
"inextricably intertwined" when they are so closely tied
together that a final Board decision cannot be rendered unless
both are adjudicated). As the claims should be considered
together, it follows that, any Board action on the TDIU claim, at
this juncture, would be premature. Hence, a remand of this
matter is warranted, as well.
Accordingly, the case is REMANDED for the following action:
1. The RO should schedule the Veteran for a
VA examination to determine the nature and
etiology of his hypertension. The claims
file and a copy of this remand must be
provided to the examiner and the examiner
should indicate his or her review of these
items in the examination report.
The examiner should opine as to whether it is
at least as likely as not (a 50 percent or
greater probability) that the Veteran's
hypertension is related to or had onset
during active service.
The examiner is asked to address the blood
pressure readings recorded during service.
A full rationale for all opinions should be
provided.
2. The RO should schedule the Veteran for a
VA examination to determine the nature and
etiology of his sleep disability with
insomnia. The claims file and a copy of this
remand must be provided to the examiner and
the examiner should indicate his or her
review of these items in the examination
report.
The examiner should opine as to whether it is
at least as likely as not (a 50 percent or
greater probability) that the Veteran's sleep
disability with insomnia is related to or had
onset during active service.
The examiner should address the Veteran's
complaints during service.
A full rationale for all opinions should be
provided.
3. The RO should schedule the Veteran for a
VA examination to determine the nature and
etiology of his bilateral knee and lumbar
spine disabilities. The claims file and a
copy of this remand must be provided to the
examiner and the examiner should indicate his
or her review of these items in the
examination report.
The examiner should opine as to whether it is
at least as likely as not (a 50 percent or
greater probability) that the Veteran's
bilateral knee and lumbar spine disabilities
are related to or had onset during active
service.
The examiner is asked to address injuries
sustained during service as well as injuries
sustained after separation, including, but
not limited to the March 2008 private
treatment record indicating that the Veteran
injured his back two years prior while at
work.
A full rationale for all opinions should be
provided.
4. Then, readjudicate the Veteran's claims
on appeal, with application of all
appropriate laws and regulations, and
consideration of any additional information
obtained as a result of this remand. If the
benefits sought on appeal remain denied, the
Veteran and his representative should be
provided a supplemental statement of the case
(SSOC). Allow an appropriate period of time
for response.
The Veteran has the right to submit additional evidence and
argument on the matters the Board has remanded. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law
requires that all claims remanded by the Board of Veterans'
Appeals or by the United States Court of Appeals for Veterans
Claims for additional development or other appropriate action
must be handled in an expeditious manner. See 38 U.S.C.A. §§
5109B, 7112 (West Supp. 2009).
______________________________________________
ROBERT E. O'BRIEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs